[1951] EACA 164

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, LOCKHART-SMITH, Ag. Vice-President, and THACKER, Ag. C. J. (Kenva)

REX. Respondent (Original Prosecutor)

## NGOILALE s/o LENJARO, Appellant (Original Accused)

## Criminal Appeal No. 42 of 1951

(Appeal from decision of H. M. High Court of Tanganyika—Clifford Knight, J.)

Murder—Killing in self-defence—Responsibility determined by principles of English law.

The appellant was convicted of murder before the High Court of Tanganyika. The evidence showed that in the course of a quarrel at a club beer party the deceased pushed appellant over with some violence causing him to fall backwards. The appellant did not retaliate but got up and walked out of the club. He was followed by the deceased who overtook him. The deceased leapt at him with clenched fists and made as if to strike him. Before he could do so the appellant stabbed deceased in the chest with a knife. The deceased was unarmed.

Held (27-4-51).—That criminal responsibility for the use of force in defence of person or Figure 3.1. The similar responsibility for the use of force in detence of person of property is to be determined according to the principles of English law, *vide* section 18, Tanganyika Penal Code.

Appeal allowed. Conviction of manslaughter substituted.

Southworth, for Crown.

Appellant absent, unrepresented.

JUDGMENT.—This is an appeal from a conviction of murder entered in the High Court of Tanganyika. The sole question that arises is whether on the facts as found by the learned trial Judge, facts which were amply supported by the evidence, the appellant has been rightly convicted of murder. The appellant and the deceased were at a club beer party when, as so often happens at such functions, some kind of quarrel broke out between them. In the course of the quarrel the deceased pushed the appellant over with some violence causing him to fall backwards in the doorway. The appellant did not retaliate but got back on to his feet and walked out of the club. He was followed almost immediately by the deceased who appeared to be very angry. There was evidence that the deceased was a bigger man than the appellant and that he always made trouble when drunk. The deceased walked fast in order to overtake the appellant and did so within about 25 yards of the club because the appellant stopped and waited for him to come up. The deceased, on reaching the appellant, leapt at him with clenched fists and made as if to strike him. Before he could do so, however, the appellant pulled<br>out a knife and stabbed him in the chest. The deceased had no stick or other weapon in his hands.

On these facts, whilst the learned Judge recognized that an element of provocation was present, he came to the conclusion that the appellant's mode of retaliation was entirely disproportionate to the provocation offered. He thought also that a mere push was unlikely to have deprived the appellant of his power of selfcontrol. We are not so satisfied, however, that the learned Judge appreciated fully that in the circumstances under which the appellant drew his knife there was also

Y.

definitely an element of self-defence, or that if he did have this in mind, and there are passages both in the notes of his summing-up to the assessors as well as in the judgment which suggest that he did, that he sufficiently realized, that although the appellant may have gone beyond what in fact was required to defend his person against assault, that fact would not inevitably make his offence murder. If a man acting in good faith exceeds the power given him by law to defend himself and kills his assailant, the resultant homicide whilst not justifiable may yet be excusable, so that his offence can be regarded as manslaughter and not murder. We believe that this aspect of the doctrine of "se et sua defendendo" is sometimes overlooked in these territories, probably because the draftsmen of the Penal Codes operating in East Africa did not see fit to include in the chapter "Offences against the person" a section similar to the second exception to section 300 of the Indian Penal Code which is as follows: —

"Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence."

The draftsmen did, however, include a section, which in Tanganyika is section 18 of the Code, which under the marginal head "Defence of person or property" is as follows:-

"Subject to any express provisions in the Code, or any other law in operation in the Territory, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English law."

This, in our view, is another way of stating the exception to section 300 of the Indian Penal Code because we regard that provision in the Indian Penal Code as an accurate codification of English common law principles. See for example Russell on Crime (ninth edition at page 504) where the learned author under Part IV deals with excusable and justifiable homicide and in particular the passage at page 507 where a citation is given from I. Hale 453:-

"If A challenges B to fight and B declines the challenge, but lets A know that he will not be beaten, but will defend himself; and then B going about his business and wearing his sword, is assaulted by A and killed, this is murder in A. But if B had killed A upon that assault it had been se defendendo, if he could not otherwise have escaped; or bare manslaughter if he could have escaped and did not."

We have quoted this old case from Hale because the facts of the second hypothesis are very similar to the present case. The appellant did decline to retaliate on the deceased at the club. He might have avoided any risk of a further assault by running away from the club. The fact that he did not do so seems to have weighed with the learned Judge, but in fairness to the appellant it must not be overlooked that on the facts found the deceased overtook him within 25 yards of the club. He did not then have much opportunity of getting well away from the club nor do we think that the inference is obvious that he must have known that the deceased would follow him when he left the club. the real difficulty in this case is to decide whether when the appellant stopped and turned round to face the deceased he did so because, knowing he had a knife, he had formed the intent to avenge himself upon the deceased, or whether he bona fide believed that turning to face the deceased was the safest course of defence open to him. The learned Judge, although he conceded that the appellant was in fear of the deceased who was a bigger and quarrelsome man, thought that his action

in stopping and waiting for the deceased to draw level with him, robbed him of any defence to the charge of murder. This is certainly not an untenable view because it is possible to draw the inference that this action indicates a determination to attack the deceased in revenge for the treatment meted out to the appellant at the club. Nevertheless we have come to the conclusion, after some hesitation. that it is not an irresistible inference and that as other inferences more favourable to the appellant are also possible ones, he should be given the benefit of the doubt. We think also that had the learned Judge more fully considered the doctrine of se defendendo in the light of section 18 of the Code he too might not have convicted the appellant of murder. We therefore propose to quash the conviction of murder and substitute one for manslaughter under section 195 of the Penal Code. The sentence of death is set aside and a sentence of imprisonment substituted. Whilst we are prepared to concede in the appellant's favour that his only intention was to defend himself the use of his knife in the way he used it against his unarmed assailant did go beyond what was necessary and calls for punishment. We think that a proper sentence in this case is one of three years' imprisonment with hard labour.